Is Your PERM Travel Requirement Conjunctive or Disjunctive?

In a recent case, a BALCA panel reviewed an IT case involving the issue of advertising for multiple, complex job descriptions and requirements – so complex that the Board found it violates the regulations. (Op ensoft, Inc., 2013-PER-867 (BALCA, August 22, 2017).

The technical language used by the employer requires concentration to understand the nuances of the court’s decision.

On Form 9089:

Occupation: Software Developers Applications. SOC 15-1132.

Requirements: Master’s degree in an IT Related field or, alternatively, a Master’s in Computer Science, MBA, Engineering, CIS, MIS or Related. No
experience requirement.

Description of Duties: Development of Java Enterprise Edition JEE applications. As a Sr. Java Developer responsible for analyzing, designing,
developing and documenting JEE projects within central JEE application development environment. Must have knowledge of Struts JEE Application
framework, JSP/Tiles, Spring framework, tag libraries, iBatis and sQL and Oracle Database Technology Etc. Must be willing to travel, perform
feasibility studies and interact with clients for different long and short-term projects.

In the recruitment steps, including http://www.monster.com/ and newspaper advertisements in the Atlanta-Journal Constitution and Atlanta Business Chronicle:

The Certifying Officer denied the application because the advertisements included the phrase, “Trav. & reloc. may be reqd.,” although the ETA
Form 9089 did not include relocation as a job requirement. This violates the regulation 20 CFR 656.17(f)(6) and 656.17(f)(7) because the language on the Form does not match the language in the ads. This much is black letter law in PERM applications.

The employer argued on reconsideration that based on a previous decision, Microsoft Corp., 2011-PER-324 (Feb. 29, 2012), the ads were placed
to fill multiple positions, and not all the positions it advertised for required relocation. The employer asserted that “based on the language and
context of its advertisements, applicants would understand that there are some positions that require…. relocation and some positions require [n]one because of the disjunctive language used by the employer to define multiple positions in the ads.”

The Board disagreed citing the “chilling effect on potential applicants” since they could reasonably assume that travel and relocation might apply
to any or all the listed jobs.

No legal brief or position was filed with the court by the Employer or by the DOL.

The Board reviewed the case and noted that the Microsoft ruling applied only where employers use the specific, narrowly defined language which was consistent with the FAQ’s and guidance which had been discussed in a Stakeholder Meeting, i.e., “some positions require travel,” would be
acceptable, and that each case is fact-specific, requiring separate inquiries as to whether applicants could have been misled into thinking that travel might be required for all the jobs listed. Many BALCA decisions were cited, which, unlike the Microsoft case, had ruled against the Employer because of perceived ambiguities about which job offers had travel requirements.

The Board noted that Microsoft involved applications with different educational levels either with a Bachelor’s degree or a Master’s degree which demonstrated to job seekers that the positions ranged from entry to senior level.

Neither of the decisions, Microsoft, or the current one, are en banc and therefore lack any semblance of precedential value, however, it is important to note that except for Microsoft, all the decisions cited by the Board are held against the employer.

The decision contains many subtleties and distinctions which stakeholders should read very carefully to understand where to draw the fine line for
advertisements including multiple jobs which may or may not require travel or relocation. Whether conjunctive or disjunctive, employers need to use the recommended language that ‘some positions require travel’ and separate the positions and their requirements more clearly in the ads.

In 2010, I wrote on this topic in my blog on ILW.com in a slightly broader context, Is PERM Experience, Education, and Training Conjunctive or Disjunctive?